The Almighty CBA

A collective bargaining agreement is a powerful thing – so powerful that it can effectively slam the court door shut on the former players’ claims against the National Football League.

The NFL uses the preemption argument often and with much success. Just ask the widow of Korey Stringer; the five players that tried to challenge the league’s drug policy over “StarCaps;” and David Givens, all of whom had the majority of their claims tossed based upon the preemptive force of labor law and the CBA.

With billions of dollars at stake, the NFL wielded its shield and forcefully argued the lawsuits must be dismissed.

In a 40-page brief — which included 14 Exhibits of past CBAs, Constitutions and Bylaws (divided into 100 parts) — the NFL argued the litigation is nothing more than a “labor dispute” that must be pursued through the “agreed-to arbitration procedures” in the CBAs.

Since 1968, the NFL and NFLPA “painstakingly negotiated” 8 CBAs that set forth, in exacting detail, the rights and duties of the parties. The CBAs have drastically changed over the past 4-plus decades. By way of example, in 1968 the home team was only required to have an ambulance at each game. Since 1982, each club is required to have a “board-certified orthopedic surgeon.” Nonetheless, the CBAs included procedures dealing, first and foremost, with player health and safety.

This could be fatal for the former players.

Section 301 of the Labor Management Relations Act (LMRA) preempts all state law claims if they are substantially dependent upon, are inextricably intertwined or arise under the CBAs. In other words, if the CBAs address an element of the players’ claims — such as duty — or if the court is required to analyze various provisions to determine the scope of those duties, it is vulnerable to being dismissed.

The NFL points to numerous provisions in the CBAs that address the players’ allegations and claims, and thus may trigger preemption.

First, the handling of player medical care and making return to play decisions was delegated to the Clubs, Club physicians and athletic trainers.

Second, rule-making and player safety was delegated to a Joint Committee comprised of the NFLPA and NFL.

Third, the CBAs include grievance procedures that require players to pursue their claims via arbitration or even forbid them from taking legal action.

Fourth, the CBAs address players’ benefits, such as workers’ compensation and the 88 Plan. This argument, especially, is directed at players that played during a period in which there wasn’t a CBA in place (e.g. pre-1968 and in between 1987 and 1993).

And finally, after thoroughly briefing the preemption issue, the NFL drops the hammer on retirees: “these provisions place responsibility on the players themselves for seeking medical care during retirement, while the NFL is tasked solely with paying the costs of certain care for eligible retirees.”

At bottom, the NFL has clearly framed this as a labor dispute, and it has delivered an arsenal of CBA provisions in hopes of persuading Judge Brody that the claims should be dismissed.

The players will have thirty days to file a reply brief, arguing, among other things, that this is much bigger than a contract dispute and that these claims belong in court. There is no question; the players have to overcome a big legal hurdle if they want to discover that proverbial smoking gun in the next stage of litigation.